KHHG and Minister for Home Affairs (Migration)
[2018] AATA 3811
•12 October 2018
KHHG and Minister for Home Affairs (Migration) [2018] AATA 3811 (12 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4243
Re:KHHG
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:12 October 2018
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – refusal of bridging visa – consideration of character test – domestic violence – guilty plea entered to offence but sentence pending – risk of applicant engaging in criminal conduct in Australia – admissions in evidence – misleading information provided to departmental officials – assessment of risk – applicant fails character test – consideration of ministerial direction – primary considerations – other considerations – any other relevant matter – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 62(4)
Migration Act 1958 (Cth), ss 116, 499, 500(6L), 501, 501K,Migration Amendment (Character and General Cancellation) Act 2014 (Cth), Sch 1, Item 11
Family Violence Protection Act 2008 (Vic), ss 53, 53AA
Cases
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Ahori and Minister for Immigration and Border Protection, Re [2017] AATA 601
Jill Lachmaiya and Department of Immigration and Ethnic Affairs, Re [1994] AATA 27
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68Secondary Materials
Migration Act 1958 – Direction No. 65 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (dated 22 December 2014)
Explanatory Memorandum – House of Representatives, Migration Amendment (Character and General Cancellation) Act 2014 (Cth)
Oxford University Press, The Oxford English Dictionary (online ed., at 10 October 2018)REASONS FOR DECISION
Senior Member D. J. Morris
12 October 2018
BACKGROUND
On 20 July 2018 a delegate of the Minister for Home Affairs (the Minister) refused an application by the Applicant for a Bridging E (Class WE) visa under section 501(1) of the Migration Act 1958 (Cth) (the Act). The delegate was not satisfied that the Applicant passed the character test under section 501(6)(d)(i) of the Act in that there was a risk that the Applicant would engage in criminal conduct if allowed to remain in Australia.
PRELIMINARY MATTER
In the past the Applicant has applied for a protection visa. That application is not the subject of this review. Section 501K of the Act provides that any information which may identify an applicant or any relative or other dependant of the person must not be published if the review relates to the person in the person’s capacity as, relevantly, a person who applied for a protection visa. Section 501K(3) defines “application for a protection-related bridging visa” to mean an application for a bridging visa, where the applicant for the bridging visa is, or has been, an application for a protection visa (emphases added).
The Tribunal raised this matter at the commencement of the hearing. Counsel for the Applicant submitted that the provisions of section 501K do apply in this matter. Counsel for the Minister did not adopt a view. After careful consideration, the Tribunal concluded that section 501K does not apply here, because this review does not relate to the person in that capacity. However, putting to one side that there will be mention of the previous protection visa application, the Applicant’s wife and their minor children will necessarily be mentioned in this decision. The Tribunal therefore determined on its own motion to make an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) prohibiting the publication of the name of the Applicant, his relatives and dependants. Therefore, the Applicant will be known by the pseudonym ‘KHHG’, and his wife will be known as ‘Mrs KHHG.’ The identity of some witnesses and other information that might tend to identify KHHG will not be disclosed.
THE HEARING
The hearing was held on 4 and 5 October 2018. The Tribunal was assisted by an interpreter in the Lebanese Arabic language. KHHG was represented by Mr Greg Hughan of Counsel, instructed by Clothier Anderson Immigration Lawyers. The Respondent was represented by Mr John Maloney of Counsel, instructed by Sparke Helmore Lawyers. The Tribunal took into evidence documents collated by the Department of Home Affairs (the Department) (G-documents). Both parties submitted Statements of Facts, Issues and Contentions. A list of exhibits taken into evidence is published at the end of this decision.
KHHG’s migration history is as follows. He was born in November 1987 in Lebanon and is a citizen of that country. He first arrived in Australia in November 2010 as the holder of a Sponsored Family Visitor visa (subclass 679). In January 2011 KHHG applied for a protection visa and was granted a bridging visa while this application was being considered. In April 2011 KHHG married Mrs KHHG, an Australian citizen. In June 2011 a delegate of the Minister refused to grant KHHG a protection visa, and in December 2011 KHHG attempted to make an onshore partner visa application but was not able to validly do so. In January 2012 KHHG and his wife left Australia for Lebanon, where they lived for several months before Mrs KHHG returned to Australia.
In October 2012 back in Australia, Mrs KHHG gave birth to their first child, a daughter. In October 2013 KHHG applied for and was granted a Provisional Partner visa (subclass 309). Around the end of 2013, Mrs KHHG travelled to Lebanon and lived with KHHG. She became pregnant and returned to Australia, giving birth to their second child, a son, in April 2015. In August 2015 KHHG was granted a partner visa and returned to Australia to reunite with his wife and their two children. They lived together in a Melbourne suburb until December 2017. In June 2016 a third child of the marriage, another daughter, was born in Melbourne.
On 26 December 2017 KHHG assaulted his wife. The police were called and KHHG was subsequently arrested and charged with four offences: Recklessly cause injury; Wilful damage/injure property; Assault with weapon; Unlawful assault. KHHG was also served with a Family Violence Safety Notice.
The following day, the Magistrates’ Court of Victoria made an Interim Intervention Order (IVO) under the Family Violence Protection Act 2008 (Vic) against KHHG, naming the protected persons in the IVO as his wife and their three children. The IVO (G34) provided that KHHG was not to commit family violence against the protected persons, contact, communicate with, approach or remain within 5 metres of any of the protected persons, or go within 200 metres of their family home.
KHHG was bailed that day on his own undertaking, provided that he lived with his brother and did not contact witnesses for the prosecution. On 31 January 2018 the Department notified KHHG of its intention to consider cancellation of his partner visa. On 5 March 2018 this visa was cancelled pursuant to section 116 of the Act on the basis that KHHG’s presence in Australia may, would or might be a risk to the health and safety of an individual or individuals. On 5 April 2018 KHHG was taken into immigration detention where he presently remains.
On 28 March 2018 KHHG applied for a bridging visa. On 13 April 2018 a delegate of the Minister refused that application. KHHG sought review by the Migration and Refugee Division of this Tribunal (G15) which remitted the matter to the Department. On 14 May 2018 (G11) the Department notified KHHG of its intention to consider whether there were grounds to refuse KHHG’s application for a bridging visa under section 501(1) of the Act. On 20 July 2018 the delegate decided to refuse the application; that is the subject of this review.
On 28 August 2018 KHHG pleaded guilty to one charge of recklessly causing injury. The other charges against him were withdrawn by the police. On 19 September 2018 the Magistrates’ Court convened to sentence KHHG but unfortunately the video link with the immigration detention centre failed and the Magistrate could not proceed to sentence. Counsel for KHHG appearing in the criminal matter, Dr Theo Alexander, wrote a note (Exhibit A10) of the appearance to Souki Lawyers, KHHG’s solicitors in the matter. The note states that the Magistrate told the Court, in the absence of KHHG, that the quantum of sentence that Her Honour indicated she was minded to impose was six months’ imprisonment and a Community Correction Order in terms not specified, but that the Magistrate asked for written submissions on how she could impose such a sentence without requiring KHHG to serve in custody given that KHHG has been in immigration detention since April 2018.
Her Honour adjourned the matter until 19 October 2018. Section 500(6L) of the Act requires the Tribunal to make a decision in this matter within 84 days of an applicant being notified of an adverse decision, otherwise the decision under review is taken to have been affirmed. The relevant date in KHHG’s case is 12 October 2018, so the Tribunal must proceed to consider this review in the absence of a conviction and of KHHG being sentenced. Mr Hughan agreed that the Magistrate’s remarks in this context cannot be regarded as anything more than a broad indication of her thinking, especially as Her Honour awaits further written submissions.
The Respondent did not submit that KHHG did not satisfy any other part of section 501 of the Act. The Tribunal did not have any submissions from the Respondent about KHHG being involved in any other serious conduct other than the offending on 26 December 2017.
The legislative framework
Under section 501(1) of the Act, the Tribunal acting as the decision-maker may decide that an applicant satisfies the character test requirements and, if so, the decision on the visa application is remitted to the Department with a direction that that requirement is met. The character test is set out at section 501(6) of the Act.
The Respondent refused KHHG’s visa application under section 501(6)(d)(i):
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
…
Otherwise the person passes the character test.
If the Tribunal is not satisfied that KHHG passes the character test, the next step is to decide whether the discretion should be exercised to refuse to grant KHHG’s visa application (see Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67, at [16]). In considering the exercise of that discretionary power, where the Minister has issued a written direction under section 499(1) of the Act about the performance and exercise of functions under the Act, decision-makers (including the Tribunal) must under section 499(2A) comply with any such direction.
On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
Relevantly, the Direction includes the following principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In the case of deciding whether to refuse a non-citizen’s visa application, the Direction requires a decision-maker to take into account considerations set out in Part B, which is divided into primary considerations and other considerations.
The primary considerations in Part B are set out in paragraph 11(1):
· Protection of the Australian community from criminal or other serious conduct;
· The best interests of minor children in Australia; and
· Expectations of the Australian Community.
A non-exhaustive list of other considerations set out in paragraph 12(1) of the Direction are:
· International non-refoulement obligations;
· Impact on family members;
· Impact on victims;
· Impact on Australian business interests.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)). However, as held in Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68, relating to a predecessor of the Direction but still relevant, the Tribunal can give equal or greater weight to any consideration.
It is an important point to make that the Tribunal is not constrained to consider only the considerations set out in the Direction and should also consider any other factor that is directly relevant to the exercise of the discretion, taking into account the particular circumstances of the Applicant.
The Applicant’s contentions
Mr Hughan told the Tribunal that KHHG had not had any contact with his children since the day of the assault on 26 December 2017, because of the IVO. The children are in the care of KHHG’s mother-in-law and Mrs KHHG has also gone to live with her mother.
Mrs KHHG has significant health challenges. Before the Tribunal was a neuropsychological assessment report (G16) conducted in December 2016 which indicated that her current full-scale intelligence quotient was within the “Extremely Low” range. Apart from this intellectual disability, Mrs KHHG also has a range of physical health conditions, including significantly-affected mobility which the neuropsychologist found cause difficulties with her activities of daily living. The evidence about the challenges her health conditions impose on her was not contested at the hearing.
Mr Hughan advised that the Victorian Department of Health and Human Services (DHHS) have decided that, in the event KHHG and Mrs KHHG reunite and take on the care of their children, DHHS would apply to remove the children from the care of their parents. Mr Hughan said that KHHG does not intend to reconcile with his wife. The Tribunal was told that KHHG has decided, if allowed to stay in Australia, to apply through the Family Court of Australia for parenting orders, with the aim of resuming his role as primary carer of the children in the future.
Mr Hughan said that, prior to the events of 26 December 2017, KHHG did not have any convictions either in Lebanon or Australia. He conceded the assault on Mrs KHHG that day, was a serious offence, and said that KHHG did not retreat from that, and was both ashamed and remorseful.
Mr Hughan submitted that, as the wording of section 501(6)(d)(i) does not specify any degree of risk, resort should be had to the intention of the Parliament when that subsection was amended by Schedule 1 of the Migration Amendment (Character and General Cancellation) Act 2014 (Amending Act).Before the passage of that Amending Act, a person failed the character test if there was a ‘significant risk’ that the person would engage in criminal conduct in Australia. Item 11 of Schedule 1 removed the word ‘significant’ from section 501(6)(d) of the Act.
The Explanatory Memorandum tabled by the Minister when the Amending Act was debated relevantly states:
The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.
Counsel for KHHG drew attention to other guidance provided in Annex A to the Direction which relevantly says at paragraph 6(2) and (3):
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
Mr Hughan said that the Tribunal should look to future risk, and that requires the Tribunal to look at the current and likely future circumstances. He said that as KHHG’s marriage to Mrs KHHG is effectively over and KHHG does not intend to resume living with her, in the circumstances, there is not a basis to conclude that KHHG presents a future risk of engaging in criminal conduct and, therefore he passes the character test.
The Respondent’s contentions
Mr Maloney submitted that the delegate’s conclusion that there was a risk that KHHG will engage in criminal conduct if he remained in Australia was sound and that the evidence is more than sufficient to establish that there is a greater than ‘minimal or remote’ chance that KHHG will engage in future criminal conduct.
Mr Maloney submitted that KHHG’s account in his statement (Exhibit A2) is ‘profoundly different from the account he offered in his interview with an officer of the Department’. He further submitted that even if the account which KHHG offers in his statement were accepted, the statement fails to explain the abrasion to Mrs KHHG’s scalp and differs markedly from the details recorded by officers of Victoria Police who attended the scene on the day.
Mr Maloney submitted that the strains which had contributed to KHHG’s offending, namely financial stress and the strain of parental responsibility, are likely to re-emerge if he were allowed to remain in Australia.
EVIDENCE BEFORE THE TRIBUNAL
KHHG’s evidence
At the commencement of the Applicant’s evidence, Mr Hughan told the Tribunal that KHHG would be making a particular admission about what actually took place on
26 December 2017 which differed from what he had previously told the police, the Courts and the Department, and also differed from KHHG’s written statement lodged with the Tribunal. The particular admission would be that KHHG would acknowledge that he struck his wife with a metal utensil caddy when they were in the bathroom of their home. Previously, KHHG had maintained that he threw the utensil caddy and that it glanced off Mrs KHHG and shattered a bathroom mirror, but that he had not directly hit her with it.
The Tribunal noted that KHHG had entered a guilty plea in relation to the charge of recklessly causing injury but no conviction has yet been recorded and, observing what Mr Hughan had said about admissions that would be made, reminded KHHG that he has the right under section 62(4) of the AAT Act not to answer a question which might tend to incriminate him. KHHG acknowledged that he understood that he had that right.
KHHG told the Tribunal that, on 26 December 2017, he had previously promised to take the family on a picnic to Geelong. He said that he had car trouble and therefore told his wife that they would have to postpone the trip. He said that his wife was annoyed but he knew he couldn’t fulfil his promise of the picnic.
KHHG said his brother, who owns a fruit shop, telephoned around 8 am and asked him to come in to assist with some renovations at the shop. KHHG said he left home, using his brother’s utility, and drove to the fruit shop, a distance of about 10 minutes from his home. Soon after arriving at the shop, Mrs KHHG arrived in a taxi, with the three children. It was a conventional taxi without child seats and KHHG said he was not only surprised at her arrival, but also concerned that the children had travelled in the taxi, unrestrained.
He said Mrs KHHG started abusing him, in front of others, and he started to apologise, again explaining about the car trouble and promised they would go on the picnic on a later day. He borrowed his brother’s car and placed Mrs KHHG and the children in it, and left for home.
KHHG said he had a tooth ache and, as he was helping his wife into the car, Mrs KHHG slapped him on the mouth, which hurt. On the journey home he said she continued to yell and scream as he drove, and he slapped her on her nose, which started to bleed. He told the Tribunal he slapped her two times, with an open hand, and said he was trying to calm her down so she would not swear in front of the children.
When they arrived home, KHHG said he took the children inside and then took Mrs KHHG inside. She continued, he said, to scream at him. He said he took her into the bathroom to help her clean up the blood from her nose-bleed. KHHG said he found the utensil caddy on the floor of the bathroom and he picked it up and hit her. He submits that he struck her once on her arm with his fist, then once on her hand, and once on her head with the caddy. The Tribunal noted that the police report said KHHG had gone to the kitchen and then brought the utensil caddy into the bathroom, but KHHG emphatically denied this, saying that ‘the kids may have left it in there’.
After the assault, KHHG said he walked five minutes to his mother-in-law’s house and explained what had happened. He said his mother-in-law said she would go to their house and try and calm her daughter. (It is not clear from the evidence whether he told his mother-in-law at that time that Mrs KHHG had a head wound.) KHHG then drove back to his brother’s fruit shop. He then received a call from his mother-in-law saying that the police were there and wanted to see him. He again borrowed his brother’s car and went home. He said he was arrested and taken to a local police station. KHHG said he admitted to the police all of what occurred, except the fact that he had hit Mrs KHHG with the utensil caddy. He said he felt embarrassed and because the police were using the word that he had been ‘armed’ (i.e. had used a weapon), that made him afraid.
KHHG said he had to wait for an Arabic interpreter, and after the interpreter arrived he declined the offer of a solicitor and said he would ‘say the whole truth as it is’. After the interview he was charged with the three offences mentioned above and bailed on his own undertaking to appear at Sunshine Magistrates’ Court the following morning.
KHHG said he had never before hit his wife, but they had many verbal arguments. He said that ‘what happened should not have happened’ and he felt particularly guilty because his actions have deprived him of parenting his children. KHHG said he was the primary carer of the children. He said he was aware that DHHS have said that if he resumed his marital relationship, that Department would take action regarding the care of the children. KHHG told the Tribunal that he was currently separated from Mrs KHHG and intended to continue that separation in the best interests of Mrs KHHG, the children and himself. When pressed that he had previously said that he and Mrs KHHG had married for life, consistent with their religious beliefs, KHHG stated a marriage contract in his faith is usually for life but divorce can occur where it is in the best interests of both parties and he had concluded that this was the case.
In cross-examination, KHHG was asked about certain inconsistencies with his written statement. In the statement, KHHG said:
When we got home, we were in the driveway, and she was still yelling at me and the children were crying. This is when I slapped her on the face, in the heat of the moment. I just wanted her to be quiet and I lost my self-control.
KHHG said this paragraph was incorrect and he did not slap his wife in the driveway. The statement was unsigned but KHHG agreed it was written in September 2018 around two weeks before the hearing. He said he dictated his statement over the phone from immigration detention to his lawyers and then they sent back a typed copy and he signed it. He now admits slapping Mrs KHHG twice in the car, but submits that, contrary to the statement, he did not slap her on the driveway.
KHHG admitted that the contents in his statement about the utensil caddy were also incorrect, and that he had indeed hit her with it. KHHG said that he did not read the statement when it was sent back to him for signature.
KHHG agreed that he had told an officer of the Department that he took Mrs KHHG into the bathroom to ‘see why she was bleeding’, but accepted now that he actually knew why she was bleeding from the nose, because the slap he had delivered to her face caused it.
KHHG also told the Department that he didn’t know his wife was bleeding from the head because of her hijab, but accepted in answer to a direct question from the Tribunal that while he may not have known she had received a cut to the head, he did know that he had used the utensil caddy to hit her on the head.
Mr Maloney drew KHHG’s attention to a statement by an officer of DHHS to the Department, that there was an unrecorded history of physical abuse, and reference to unreported prior physical abuse was also included in the Victoria Police Sub Incident Report (Exhibit R2). KHHG denied this emphatically at the hearing.
KHHG denied that financial stress had contributed to the events of 26 December 2017. He said they had ‘just enough’ money with Centrelink payments, but were managing, and that he receives assistance from other family members when he faced hardship. He said it had been difficult being the primary carer for his wife as well as caring for three young children and that DHHS had told the Minister’s delegate that they would prefer he and Mrs KHHG remained separated from each other. Based on this, he had decided, notwithstanding that he still loves his wife, he should put the children first and they should remain separated.
KHHG told the Tribunal about the history of involvement with DHHS which he said began with the birth of their first child, which was difficult (and occurred while he was still in Lebanon), when Mrs KHHG was worried she would not be able to care for the newborn baby. He said that he had complied with all the requirements placed on the family by DHHS and, when there was some misunderstanding about leaving his wife with the children, it was clarified and he quickly complied. There is some evidence to the contrary from DHHS comments to the Minister’s delegate, which indicates KHHG would go out to work or sometimes go out in the evenings when he should have remained with Mrs KHHG and the children, or arranged for another adult to be with her, owing to her established deficits in being able to properly look after the children.
Evidence of witnesses
KHHG’s sister-in-law
KHHG’s sister-in-law gave evidence to the Tribunal and confirmed that KHHG is the primary carer for the children. She said that the events of 26 December 2017 were out of character and a ‘horrible thing to do’. She said that Mrs KHHG’s intellectual disabilities meant that she was unable to look after the children on her own and, while she had spoken to Mrs KHHG several times since December 2017, Mrs KHHG’s mother would not allow her to see her nieces and nephew.
Ms DM and Ms CM
Ms DM gave evidence and said she had known KHHG for three years and that he was the ‘mother and father’ of the children. She said she had never observed violence at all by KHHG towards his wife.
Ms CM is a customer at KHHG’s brother’s shop and has got to know the family that way. She said she had once been with them all to a local festival and said she was shocked when she heard of the charges because he ‘wasn’t that kind of person’, but said she strongly felt he had learned his lesson and was no future threat to the children. Ms CM agreed that she did not know all the details of the assault.
Ms AZ
Ms AZ is a friend of the family. She said her sister had a role in the past caring for Mrs KHHG, and she saw KHHG regularly at that time. She said KHHG was patient and caring for the children and said her ‘mouth dropped’ when she heard that he had assaulted his wife. She said she confronted KHHG and he told her he had hurt Mrs KHHG and ‘regretted it so much’. In cross-examination, Ms AZ said KHHG was ‘like a single parent with an older child on his back’ and strongly felt the stress simply became too much for him that day. When asked whether she was aware that the children were present in the corridor and witnessed the assault in the bathroom, Ms AZ said she was unaware of that detail.
Mr Paul Newton, forensic psychologist
Mr Newton gave evidence that he interviewed KHHG on 24 and 25 September 2018 by telephone and wrote a psychological assessment dated 25 September 2018 which was before the Tribunal (Exhibit A7).
Mr Newton administered two tests and concluded:
In summary, this review indicates that provided [KHHG’s] personal circumstances remain stable his risk for general recidivism would be relatively low with significant factors conferring containment on the risk of recidivism.
Mr Newton told the Tribunal that KHHG had given him an account of the events of
26 December 2017 and he was subsequently aware that KHHG had made certain admissions to the Tribunal about certain parts of what happened that day in relation to the assault, which differ substantially from what he has maintained to the police, the Department and the Courts. Mr Newton said that this may affect clinical factors such as insight and may possibly indicate a degree of impulsivity, but he did not think it would have an impact on his assessment of general recidivism.
Mr Newton said that in his view KHHG would have a low risk of engaging in criminal conduct in the future; that circumstances have changed with the effective ending of his marriage and the removal of the allied stresses. Mr Newton described KHHG’s marriage as a ‘dysfunctional relationship’ with long-term stresses and that KHHG had no support in terms of shared parenting skills. When asked directly by the Tribunal why he used the word ‘dysfunctional’, Mr Newton said that based on his discussions with KHHG, his conclusion was that the marriage had become dysfunctional ‘in recent months and years’ and the strains of it had become insurmountable.
KHHG’s brother
KHHG’s brother gave evidence of what happened on the day of the assault and said KHHG had told him he had slapped his wife twice in the car and when they arrived home he ‘grabbed the metal thing and threw it at her and it hit her head’. He said KHHG later admitted to him he had hit her with the utensil caddy directly and then threw it and it shattered the mirror. KHHG’s brother also gave evidence that he employed KHHG in his shop and paid him around $200 per week, and also helped the family out financially by providing fruits and vegetables without cost.
CONSIDERATION – THE CHARACTER TEST
The assessment of the risk of KHHG engaging in (further) criminal conduct in Australia necessarily requires a weighing of the different factors in evidence before the Tribunal. Evidence which supports an assessment of “low” risk was submitted by Mr Hughan that, given that the marriage between KHHG and his wife was ‘effectively over’ and he does not intend to resume living with her, the circumstances which led to the assault have been removed. Mr Hughan also pointed to the fact that KHHG pleaded guilty and showed remorse, has complied with bail conditions and the requirements of the IVO and that there are strong and compassionate reasons, given KHHG’s close relationship with his children and the primary role he has played in their lives, to allow him to stay in this country.
Mr Hughan said there is no ‘appreciable chance’ of KHHG re-offending. In the Applicant’s Statement of Facts, Issues and Contentions, Counsel wrote:
The risk that [KHHG] will reoffend is “low” and not different from any other male person in the community. He has no previous convictions in Lebanon and no other convictions in Australia.
This contention was put to Mr Newton who said that this statement should be interpreted, in his view, as referring to males who share the characteristics of KHHG and reiterated his view that KHHG was within the low risk category and the focus should be on treatment.
The Tribunal asked Mr Hughan whether he still adhered to this particular contention in the light of the new admissions made by KHHG and the evidence of Mr Newton, and Counsel said that he did, in an actuarial sense.
Mr Maloney submitted that KHHG’s evidence was misleading and has been inconsistent, and drew attention to inconsistencies in his written statement and that it therefore cannot be given real weight. Mr Maloney submitted that KHHG should be taken to have given a minimalizing account of what happened on 26 December 2017 and that he changed his version of events in a self-serving manner. He said that there were references in the papers before the Tribunal to past unreported instances of domestic violence.
The Tribunal notes that in interview notes made by an officer of the Department on 5 April 2018 (G9, p 48) the officer recorded:
I asked if Emilia was aware of past DV [domestic violence]. Emilia said that [Mrs KHHG] told her it was ongoing. There was a change in ‘Futures’ case worker at DHS. The case worker has no concern of DV.
Emilia stated there is a history of financial abuse. Client took Centrelink money from [Mrs KHHG] and did not give it to her. Emilia had been told about old DV but had no concerns as there was no evidence of it.
The Tribunal also notes the Victoria Police Sub Incident Report dated 26 December 2017 relating to the events two days earlier (Exhibit R2) stated:
There is a history of unreported physical abuse and controlling behaviour (preventing AFM from leaving house, having access to money) from the RESP to the AFM.
The Tribunal understands that ‘AFM’ in this context refers to the Affected Family Member (Mrs KHHG) and ‘RESP’ refers to the respondent (KHHG).
As mentioned above, KHHG vehemently denied any prior domestic violence. He also denied withholding money from Mrs KHHG or limiting her movements, saying that she visited neighbours and would go shopping, sometimes alone and sometimes with him or other family members to assist her because of her mobility issues. He told the Tribunal that she was learning to drive, and had obtained her learner’s permit.
The Tribunal concludes that the reference by Victoria Police may have been recorded based on what Mrs KHHG told them when they attended the house on 26 December 2017 but, in the absence of any corroborative material other than these two mentions, is unable to conclude that there had been any prior domestic violence before 26 December 2017.
In considering whether KHHG passes the character test, the Tribunal must come to a conclusion on the question of whether he will re-offend if allowed to remain in Australia. The Explanatory Memorandum, which may be used to assist in the interpretation of the legislation, refers to more than a ‘minimal or trivial’ likelihood of risk. There is no other provision in the Act which expands upon how risk should be assessed. Therefore the Tribunal considers the word should be given its ordinary meaning within the context of the Act. The Oxford English Dictionary definition of minimal is ‘of a minimum amount, quantity or degree; negligible’.
A Community Correction Order Assessment Outcome Report in relation to KHHG dated 7 September 2018 and prepared for the Sunshine Magistrates’ Court (Exhibit A12) stated:
He has been assessed at a moderate risk of general reoffending as per the LSI-R:SV.
Mr Newton was asked about this report, given the assessment differs from his conclusion that KHHG is of ‘low’ risk of reoffending. He said that the LSI-R:SV assessment tool was used to evaluate the service level of a client in the correctional context. Mr Newton said he did not use the tool and had only general familiarity with it. He was ‘puzzled’ about the conclusion in the report of a ‘moderate’ risk, and was of the view that he could not find a way of realistically modifying his own conclusion that there was a low risk in relation to KHHG.
The Tribunal must decide whether there is more than a minimal or ‘negligible’ risk of KHHG engaging in criminal conduct in the future. The degree of risk must be somewhat measurable, taking into account the past conduct of KHHG. It would appear from the evidence of others who know KHHG, coupled with Mr Newton’s professional assessment that the assault on 26 December 2017 may have been somewhat out of character. The Tribunal cannot accept Mr Hughan’s contention that the risk is the same as ‘any other male person in the community’, actuarially or otherwise. KHHG assaulted his wife, someone for whom he had a general duty of care but also, importantly, a special duty of care because he knew that she had special needs for which KHHG said she receives a Disability Support Pension and he himself had applied for Carer Allowance (G26, p 314). (The application was rejected because KHHG did not hold a permanent visa.) The Tribunal also notes that KHHG committed the assault in front of their three small children.
KHHG’s evidence to the Tribunal was that the utensil caddy was on the floor in the bathroom, but he did not know how it happened to be in the bathroom. He speculated that ‘the kids may have left it in there’. The Victoria Police report (Exhibit R2) relevantly recorded:
A verbal argument ensued with the RESP driving the AFM and children back to their house. On route the argument escalated with the RESP punching the AFM to the face causing her nose to bleed. Once home the AFM went to the bathroom to wash her face and clean up the blood. The RESP then entered the bathroom and struck the AFM with a wire “spoon caddie” that he had taken from the kitchen, causing a laceration to her scalp.
The Tribunal does not accept KHHG’s evidence that, for some unknown reason, the utensil caddy, a kitchen item, was in the bathroom, and prefers the evidence in the Victoria Police report that KHHG obtained it from the kitchen and then took it into the bathroom. On his own admission he hit his wife with this metal item more than once, and then forcefully threw it at the wall, breaking the mirror. The assault led to Mrs KHHG sustaining a head injury which drew blood and required hospital treatment.
The Tribunal accepts that the heated argument between KHHG and his wife that began that morning at the shop, leading up to the assault, had substantially raised the tension between them. The Tribunal accepts KHHG’s own evidence that his wife slapped him once on the mouth in the car and that he responded by slapping her twice, causing her nose to bleed. Then when they got home and she went to the bathroom to clean up, KHHG proceeded to hit her several times, both with his fist and with the utensil caddy, causing a further injury. The Tribunal rejects, in all these circumstances, Counsel’s submission that ‘any other male member’ of the community could have the same propensity to commit such an assault against a vulnerable woman, or indeed that any adult member of the community would have that same propensity, regardless of sex.
It is well established that the Tribunal cannot look behind a conviction or facts found by a Court. However, there is not yet a conviction in this matter. While KHHG has pleaded guilty to the offence of recklessly causing injury, which means that he has admitted to all the ingredients of the offence, by his admissions in the hearing of his actions on 26 December 2017, the Tribunal considers that his actions appear to amount to more than recklessness. The series of events occurred, KHHG conceded, over a period spanning 15 minutes or so. Even isolating the bathroom assault, they cannot be characterised as occurring in the heat of the moment. While he contends (and it may be accepted) that there was some verbal provocation, KHHG confirmed that his wife did not physically touch him in the bathroom in any way. The Tribunal notes that KHHG said in evidence that he intends to make a statement to the Magistrates’ Court when he appears for sentence, admitting how he used the utensil caddy. But the unavoidable conclusion from his evidence to the Tribunal is that KHHG gave an incomplete account, or an account that he knew did not accord with the truth, to police and the Courts.
Deputy President McMahon said in Re Jill Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35]:
…The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.
KHHG has had several opportunities to be truthful but, until this hearing, has not been. For instance, a Departmental officer recorded that he said in an interview on 5 April 2018:
‘I told the police that I did not hit her with any metal. The shower caddy [sic] hit the mirror and the mirror broke…I did not hit my wife’ (G9, p 47).
In addition, KHHG gave the Member conducting the hearing in the Migration and Refugee Division of this Tribunal on 27 April 2018 an account of the incident which the Member recorded in her decision ‘did not vary from the account the Applicant gave the Department.’ (G15, p 83). By doing so, he was not, therefore, truthful in that hearing.
It may be, as he submitted, that he was ashamed. He said that he was fearful that the police describing the utensil caddy as a ‘weapon’ meant, in his contention, that he wanted, in his words, ‘to kill’ Mrs KHHG, which he definitely did not, and which is why he decided not to admit to using the caddy.
Taking into account the late admissions of KHHG to elements of the offence which generally match those first recorded by Victoria Police and which led to laying of particular charges, but consistently denied by him to officers of the Department and to the Magistrates’ Court, as well as in documents lodged on his behalf for this hearing as recently as two weeks before it was held, the Tribunal finds that these facts contribute to support an assessment of a moderate-to-low risk. That is because the inconsistency in his evidence illustrates, apart from Mr Newton’s view of contributing to a lack of insight, also, in the Tribunal’s view, an element of denial and untruthfulness. Perhaps, on balance, the risk leans more to the low side than the moderate side.
A low risk may still be a real risk. As the Full Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493 (Batey), at 501:
As appears from the observations of Mason J. in Wyong Shire Council v Shirt, there is no inconsistency in finding that a risk is real, in the sense that it is not far-fetched or fanciful, yet the degree of probability of its occurrence is quantitatively low. Such a course is rationally open provided that the word "real" is used in a qualitative and not a quantitative sense to describe the risk.
KHHG responded to the Tribunal in answer to a direct question, that what prompted him to decide to divorce his wife was when the Minister’s delegate told him that DHHS would apply to have the children taken into care if the parents reunited. He said DHHS ‘never communicated this directly to me’. This is not consistent with an email before the Tribunal from Ms Emilia Berra, a Child Protection Officer employed by DHHS (G12) who had significant involvement with KHHG, Mrs KHHG and the children. Ms Berra’s email states that she had made DHHS’s intentions clear ‘on multiple occasions’ directly to both KHHG and Mrs KHHG. The Tribunal therefore is troubled that KHHG’s late decision and evidence that he will divorce his wife has the appearance of saying something directed to an immigration outcome only, rather than necessarily what will be followed through.
It is a pivotal point that the risk of reoffending is directly linked to whether KHHG resumes his marital relationship, or even contact, with Mrs KHHG. This was also Mr Newton’s professional opinion. Given the inconsistency in his evidence, the Tribunal is not comfortably satisfied of KHHG’s real intentions in this regard.
The Tribunal finds that the risk of KHHG reoffending is not negligible, or to use the words of their Honours in Batey ‘far-fetched or fanciful’, and accordingly section 501(6)(d)(i) is engaged. It follows, therefore, that the Tribunal finds that KHHG does not pass the character test.
CONSIDERATION – THE DIRECTION
Having made that finding, the Tribunal must then move to the next stage, the consideration of the relevant provisions for visa refusal set out in the Direction.
Primary considerations
Protection of the Australian community (para 11.1)
Counsel for KHHG accepted that the conduct was serious, but underlined that it related to only one occurrence on 26 December 2017 and there was no other offending.
The nature and seriousness of the conduct (para 11.1.1)
The Direction requires decision-makers to have regard to the principle that ‘crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious.’ KHHG’s offending encompasses two of these groups, because the offending against Mrs KHHG may, because it occurred in the presence of the minor children, be regarded in domestic violence terms as an offence that affects the children as well. In addition it is well documented in the G documents that Mrs KHHG has both cognitive and physical disabilities.
In Re Ahori and Minister for Immigration and Border Protection [2017] AATA 601, Senior Member Sosso (as he then was) said, at [53]:
Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.
The Tribunal also adopts this view, noting that both Mr Hughan and KHHG himself acknowledged the seriousness of the offending. Evidence from witnesses reflected their shock at KHHG’s conduct, especially as they regarded it as inconsistent with what they knew about him.
The Tribunal cannot have regard to a sentence because as explained above there has not, in fact, yet been a formal conviction or sentence. The Tribunal does note (taking into account that this is an email from Dr Alexander to KHHG’s solicitors and not any formal indication from the Court) that Dr Alexander said the Magistrate was minded to impose, for this first offence, a sentence of imprisonment of six months, and a Community Correction Order. If this was indeed to be the ultimate sentence, a custodial sentence is at the highest end of the range of potential sentencing options available to Her Honour. It is also significant that the IVO imposed on KHHG is, to use the word of the delegate ‘uncompromising’ in its terms.
There is no evidence of any frequency of offending or any trend of increased seriousness. KHHG made an admission that logically means he has provided false and misleading information to the Department, which is a matter the Direction specifically mentions.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 11.1.2)
The Tribunal considers that there is a low risk of KHHG offending, a risk that would significantly change if he is back in company with his wife. He has indicated this is not his intention, and indeed engaged solicitors to commence the process to seek sole parental responsibility for his children. He told the Tribunal he now intends to lodge divorce proceedings. The Tribunal notes the delegate recorded that Dr Alexander told the Magistrates’ Court in April 2018 that there had been overtures from Mrs KHHG and her family that the relationship should resume and, at that time, Dr Alexander understood there was no discussion about divorce. As mentioned above, this is a pivotal point because, if this circumstance changed, Mr Newton’s professional opinion was that his assessment of a ‘low risk’ would have to be revised. However, the lack of clarity about KHHG’s intentions set out above also affect this consideration in the Direction.
Overall, because of the nature and seriousness of the conduct in the context of the assault, the Tribunal finds that this consideration weighs strongly in favour of refusing the visa.
Best interests of minor children in Australia affected by the decision (para 11.2)
The Direction requires decision-makers to take account of this primary consideration only if minor children in Australia are affected and, if their interests differ, they should be given individual consideration. KHHG has three minor children, all of whom are Australian citizens and reside in this country. At the time of this decision the eldest is aged almost six; the second child is aged three; the youngest child is aged two years.
There is no doubt that if KHHG has to return to Lebanon, there will be a significant effect on all of the children, and perhaps a slightly greater effect on the two older children. The Direction requires the Tribunal to consider whether there have been long periods of absence by the non-citizen. There have been absences as both older children were conceived in Lebanon before KHHG came to Australia in August 2015, but were born in Australia. For instance, their eldest child was born in October 2012 but Mrs KHHG did not reunite with KHHG with that child in Lebanon until the end of 2013. Their second child was born in April 2015 and KHHG did not last enter Australia until August 2015. In addition, because of the incident of 26 December 2017 and the IVO, KHHG has not had contact with any of the children since 26 December 2017.
The Direction also requires the Tribunal to take into account whether Court orders are in place restricting contact. As mentioned above, an IVO was made by the Magistrates’ Court (G5). Among the provisions, KHHG is not permitted to contact or communicate with any of the named protected persons (that is, Mrs KHHG and the three children) by any means, or get any other person to do so on his behalf. KHHG told the Tribunal he had fully complied with the IVO, and there is no evidence to the contrary. Mr Hughan rightly drew the Tribunal’s attention to the fact that this is an interim order. However, the Tribunal notes that it remains in force until a final order is made unless varied or revoked by the Court, or withdrawn. It is less likely that the IVO, or a more permanent order, will not remain in place for a period of time determined by the Court, once a conviction is recorded, especially if a sentence of imprisonment is imposed, suspended or not.
The Direction also requires the Tribunal to consider whether there are other persons who already fulfil a parental role in relation to the children. In this matter this is a complex question because although Mrs KHHG is currently living with the children (and her mother), there is evidence that she is not fully able to fulfil her parental responsibilities and in fact the children are currently in the care of their maternal grandmother. There was some evidence before the Tribunal that the grandmother has indicated she will not be in a position to care for the children indefinitely.
In regard to KHHG’s intention to seek sole parental responsibility, or failing that, joint access arrangements, the Tribunal notes that in response to Souki Lawyers writing to Mrs KHHG’s mother seeking consent orders, the firm says there has been no response, in spite of many follow ups. For the Tribunal to engage in speculation about what view the Family Court might take in regard to sole, or joint, custodial arrangements in a situation where (by then) KHHG may have had a conviction recorded and a prison sentence imposed for seriously assaulting his wife in the presence of the children is largely a futile exercise, but it is reasonable to conclude that the Family Court would view these circumstances as relevant.
The Tribunal must also take into account whether the children have suffered or experienced any physical or emotional trauma arising from KHHG’s actions. Although the children witnessed the altercation in the bathroom that day and according to the police report were crying, there was no concrete evidence from the parties about any effect on them except that Victoria Police said that the eldest child (wrongly named in the report) ‘ran across to a neighbour’s house and told them to call police because ‘Mum got hit by Dad and her head started bleeding’.’ It is possible, therefore, but was unsupported by any evidence, that the eldest child may have been more affected.
The Tribunal must also take into account the Department interview notes that say that DHHS told KHHG on 14 February 2018 (G9, p 47):
If the family reunite, DHS [sic] will remove the children due to Domestic Violence.
The officer of DHHS, Ms Berra, wrote relevantly as follows (G12):
Following the family violence incident, [KHHG] attended an office meeting to discuss Child Protection concerns and the details within the family violence report; during this meeting [KHHG] did not demonstrate insight into concerns and denied the details of the report and could not provide a reasonable explanation of [Mrs KHHG’s] injuries following the family violence incident. Furthermore, during this meeting [KHHG] did not demonstrate insight into the affects [sic] of this incident [on] his children’s safety and wellbeing.
-To date, [KHHG] has continued to deny any family violence and has not articulated any insight into his behaviour or engaged with appropriate family violence support services.
- There is a full-exclusion IVO currently in place due to the severity of the family violence, which prevents any and all contact with [Mrs KHHG] and the children, and pending criminal charges relating to this incident. [KHHG] has continued to deny any family violence and criminal charges in relation to this.
Given the above, it is my assessment that:
-[KHHG] minimises the concerns held by Child Protection in relation to the limitations on [Mrs KHHG’s] cognitive disability on her parenting capacity
-Refuses to acknowledge his own behaviours and minimises the affects [sic] of family violence on his children
-Lacks insight into concerns held by Child Protection as a result of the above
-Lacks the capacity to follow through with safety plans to ensure the children’s safety and wellbeing
As a result of this assessment, as well as the presence of a full exclusion IVO, I am not currently supporting [KHHG] and [Mrs KHHG] reunifying and will issue a Protection Application by Emergency Care, removing the children from [the parents] in the event that they reunify. I have made this clear to both [KHHG] and [Mrs KHHG] on multiple occasions and have also advised that [the parents] would need to engage with appropriate services before I reassess my position.
Ms Berra inquired of the Department whether it would be possible to make further assessments of KHHG through a meeting with him and inquired whether this was possible while he was in immigration detention. It is not known whether any meeting took place. The Tribunal considers that, in fairness to KHHG, this indicates that the door was open to a reassessment of his parenting abilities by DHHS.
KHHG’s brother-in-law responded to a question from Mr Maloney that he would be prepared to take the children to Lebanon to visit their father if he was deported, but that would depend on permission from their mother or other parental guardian at the time, and the Tribunal has no way of knowing if that would be likely.
It is noted from the material from DHHS and Tweedle Child and Family Health Services (G23) that the challenges of parenting focus mainly on Mrs KHHG’s cognitive and physical disabilities, but not exclusively so. KHHG has also had to learn how to parent his children, but it seems to the Tribunal that he has been working hard towards this goal.
The contemporary situation is that the best interests of the minor children affected weigh in favour of KHHG remaining in Australia, but for the reasons clearly articulated above, not unalloyedly so.
Expectations of the Australian Community (para 11.3)
Assessing what are the expectations of the Australian Community should always be approached with caution. The Direction correctly points out that the community expects non-citizens to obey Australian laws. The Tribunal considers that, in this primary consideration, the expectations logically predicate that the expectant community members are in possession of the relevant facts in a particular case. Australians have a low tolerance to domestic violence and, noting that there is no evidence that this was other than a single incident, particularly so when the assault in question has been committed against a vulnerable person. That is so in this case.
The Tribunal considers that members of the community would also view very disapprovingly that KHHG had, up until the hearing, persistently denied deliberately striking his wife with the utensil caddy, and only now admits that he did so, causing a head injury. Balancing that, community members may quantify their level of disapproval if they had some understanding of the general day to day stress KHHG may have been under, according to evidence of several witnesses, and the evidence that he has effectively had to be ‘both father and mother’ (to use the words of one witness), but not so as to justify this instance of an act of violence, perpetrated, as it was, in the presence of small children.
The Tribunal finds that this consideration weighs in favour of refusing the visa.
Other considerations
International non-refoulement obligations (para 12.1)
Although KHHG had applied for a protection visa in 2011, it was refused at departmental level and that refusal was not pursued by KHHG. Mr Hughan said this claim was ‘put to rest’ by this refusal and he did not seek to agitate it on behalf of KHHG. Mr Maloney made no submissions on this consideration at the hearing.
As there is no evidence before the Tribunal that Australia’s international treaty obligations are stimulated in KHHG’s review, the Tribunal did not consider this consideration further.
Impact on family members (para 12.2)
It was clear on the evidence that KHHG has an extended family base in Australia. KHHG provided the Department with details of his family in his personal circumstances form dated 12 June 2018 (G20). He has four brothers who live in Australia and five brothers who live in Lebanon. He said he had eleven nieces and nephews who reside in Australia and five cousins here. KHHG’s brother and sister-in-law gave evidence of KHHG’s regular interactions with their children and other broader family members, and their interaction with KHHG’s children up until the IVO was imposed. There has already been a significant impact on KHHG’s mother-in-law since the IVO was imposed as, prior to 26 December 2017 KHHG was the primary carer of the children. Mrs KHHG’s mother has taken on the care of the children and, to some extent, also resumed care of her daughter, and whatever future arrangements are made, may have major impacts on many family members, depending what those arrangements ultimately are.
The Tribunal finds, on the evidence before it, that there would be a significant impact on KHHG’s family members in Australia if his visa application was refused, which weighs in favour of the grant of a visa.
Impact on victims (para 12.3)
The Respondent accepted that an informed assessment of the impact on Mrs KHHG is speculative. She did not give evidence in this hearing, nor provide any written indication of her views, and nor did anyone on her behalf. In this circumstance, the Tribunal has not considered this consideration further.
Impact on Australian business interests (para 12.4)
The parties did not make any submissions on this other consideration. The Tribunal notes that KHHG said his only employment in Australia has been casual work at his brother’s fruit shop, and that his hours of work were understandably constrained by his duties as carer to Mrs KHHG and his parenting role. The Tribunal did not consider this consideration further.
Other relevant matters
Mr Hughan submitted that KHHG has been a valuable contributing member of the Australian community and has established ties to the community in his time here. The Tribunal had before it a testimonial from Sheikh Abduallah Hiwari, the Sheikh of the Newport Islamic Society (G21, p 159) who attested to KHHG’s character, and recorded that he was aware of the incident which was before the Court. Ms Leila Alloush, Chief Executive Officer of Victorian Arabic Social Services (VASS), provided a testimonial dated 29 May 2018 (G21, p 160) which recorded that KHHG has engaged with VASS to seek assistance with parenting workshops and counselling sessions following the breakdown of his marriage. KHHG himself gave evidence about this at the hearing and lamented that he had not taken up an earlier suggestion to engage in counselling. Two other family members also provided testimonials.
The Tribunal notes, in terms of KHHG returning to Lebanon, that he has a number of siblings there, as well as his mother, and no evidence was advanced on his behalf that there would be any impediments to him returning to that country.
CONCLUSION
There are a number of complexities in this review. The Tribunal is keenly aware that, a decision to refuse KHHG’s application for a visa may result in him losing contact with his children initially; and potentially for a significant period. But it must be underlined that he has not had contact with them since the end of 2017 entirely as a direct consequence of his own actions on 26 December 2017.
The Tribunal accepts that this is not a case where an Applicant has a long history of criminal offending; on the evidence this was a single incident, but it was a very serious one involving an act of violence which resulted in injury to a vulnerable person, KHHG’s wife, amplified by the presence of their small children. This was serious conduct which had been minimised by KHHG right up until the hearing, including in the previous appearance he had before the Migration and Refugee Division of this Tribunal where he said he had been ‘honest and truthful’. KHHG provided false and misleading information to that hearing, as well as to the police, the Department, DHHS and, up until now, the Court.
As Mathews J, sitting as a Deputy President of this Tribunal, said in Re:Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [51]:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
Taking all the evidence into account, and carefully weighing the considerations in the Direction, the exercise of the discretion and other relevant matters, the Tribunal finds that the considerations and the discretion available weigh against approving KHHG’s visa application. The Tribunal finds that it was correctly refused.
DECISION
The Tribunal affirms the decision under review.
124. I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
[sgd]...........................................................
Associate
Dated: 12 October 2018
Date of hearing:
Applicant
Advocate for the Applicant
Solicitors for the Applicant
Advocate for the Respondent
Solicitors for the Respondent
4 & 5 October 2018
In person
Mr Greg Hughan
Carina Ford Immigration Lawyers
Mr John Maloney
Sparke Helmore Lawyers
List of Exhibits
A1 - Bundle of photographs lodged by the Applicant
A2 - Statement of KHHG dated September 2018
A3 - Statement of KHHG’s sister-in-law dated 17 September 2018
A4 - Statutory Declaration of DM dated 17 September 2018
A5 - Statutory Declaration of CM dated 17 September 2018
A6 - Statutory Declaration of AZ dated 17 September 2018
A7 - Report of Mr Patrick Newton and associated papers
A8 - Statutory Declaration of KHHG’s brother dated 17 September 2018
A9 - Letter to Tribunal from Souki Lawyers dated 14 September 2018
A10 - Email: Dr Theo Alexander, Barrister, to Souki Lawyers dated 14 September 2018
A11 - Plea submissions to Sunshine Magistrates’ Court dated 14 September 2018
A12 - Community Correction Order Assessment Outcome dated 7 September 2018
R1 - Preliminary Brief – Statement made by Informant (not dated)
R2 - Victoria Police Sub Incident Summary Report dated 26 February 2017
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